The Pandemic-Proof Construction Contract: What is a Force Majeure Provision?



Meghan Lamping

It’s safe to say that 2020 isn’t going how anyone had planned.

When it comes to contracts, this can be a very big problem – depending upon the wording in your contract.

Whether you are looking to enforce a contract, renegotiate a contract or escape a contract as a result of the COVID-19 environment, here’s a common starting point for all parties: review the contract carefully and look specifically for an important clause called Force Majeure.

What is a Force Majeure Provision?

A force majeure clause (translated to “superior force”) may free either party from performing under a contract when events beyond their control prevent them from fulfilling their obligations. The clause may be triggered by extraordinary events such as labor strikes, war, government acts, natural disasters – and potentially, global pandemics.

What doesn’t trigger a force majeure clause is almost as important as what does and is often the source of debate. Generally, anything that is foreseeable, resulting from negligence or could be fulfilled with reasonable alternate means will not excuse performance or be covered under a force majeure clause.

What to Be Aware Of

Because force majeure interpretations may differ, the specific language in your contract is critically important. Here are key questions to ask as you review the provisions through a new, COVID-19 lens.

Is it narrow or broad? Does your contract specify what events constitute force majeure? Does it include terms such as “pandemic,” “disease” or “public health emergency?” Or does it use broader, catch-all language such as “events beyond control” or “including, but not limited to?”

Who is responsible for what? Understand which parties are responsible for what actions. For example, which obligations are excused? Does either party have the right to invoke the clause?

What obligations are covered? Are all obligations subject to the clause? Generally speaking, an obligation to pay for materials or work that has already been performed will not be impacted by or subject to a force majeure clause. Are there specified obligations that must be met after invoking the clause? Do you need to provide a specific notice or engage in specific mitigation efforts?

What are the pertinent timeframes? Some clauses may specify a window of time between the event and invocation of the clause, so determining when to use force majeure is important. And moreover, force majeure clauses typically aren’t going to relieve one party’s obligations indefinitely. Instead, they may be suspended for the duration of the force majeure event or require a party to communicate a window of time for delays. The contract may also allow termination for nonperformance after a certain amount of time.

What is required?  If you are considering invoking a force majeure clause, carefully review notification and response requirements to understand when and how communication, such as written notices, should be handled. Some contracts may include other requirements, such as the submission of a mitigation plan within a certain time after invoking the clause.

No Force Majeure Clause?

If an express force majeure clause is not present in the contract, there may be other legal theories that allow one party to be excused from performance on the grounds that it is impossible to perform the contract obligations, or the purpose of the contract has been frustrated due to circumstances that could not be anticipated. Whether these legal theories will apply to COVID-19 matters remains to be seen.

Additionally, it’s always good practice to investigate whether there is insurance available to mitigate some or all of the losses.

When we emerge in a post-COVID-19 world, construction leaders will review their standard contracts with fresh eyes. The importance of the force majeure clause is often far underappreciated until the unforeseen suddenly becomes reality. While it’s difficult to plan for things you don’t see coming, a well-worded contract will help to reduce uncertainty and stress during extraordinary times like we are experiencing now.

Meghan M. Lamping is an attorney at Carmody MacDonald in St. Louis. She focuses her practice on construction law, business litigation, and trusts and estates litigation. Contact Meghan at or 314.854.8600.

This column is for informational purposes only. Nothing herein should be considered legal advice or as creating an attorney-client relationship. The choice of a lawyer is an important decision and should not be based solely on advertisements.


Virtual is the New Visual: Keep Your Marketing Simple and Effective in Turbulent Times



Stephanie Woodcock

As work continues in the wake of this global crisis and some form of normalcy resumes, there is a new landscape to navigate in our marketing efforts.

Yes, marketing. Did we forget?

I don’t blame you. It’s easy to forget parts of our overall business strategies when we are currently living out what seems like a real-life apocalyptic movie. With everything changing so fast, it’s difficult to track how it affects our marketing, let alone to deliver that marketing.

Now that traditional B2B sales efforts, face-to-face meetings, lunch ‘n learns and event marketing are paused, we need to learn the new normal of marketing techniques that may be the new normal to stay. With everyone going digital, our content and messages can easily turn into white noise. In addition, we’ve all been thrown a lot of numbers lately. Here are some important ones:

Marketing 101 During COVID-19 in 2020

  • Embrace A Different Kind of Digital Marketing

Now that traditional sales work is restricted, marketing has to fill that space. Whether it’s paid search marketing, SEO, electronic email blasts, video content, webinars, press releases or social media engagement, B2B content marketers have the tall order of being both sensitive to current circumstances while also being educational and entertaining.

Good marketers know that in order for people to engage with content, it has to inform, entertain or save them money. Some companies are really capturing the spirit of community and togetherness in this crisis, but many of those companies are B2C. They are used to entertaining the consumer.

In our B2B environment and A/E/C (Architectural, Engineering, Construction) industry, we are more accustomed to informing and educating our customers with crucial project details and in person – not educating our customers about our company, community and culture. But now is the time. People need to laugh. They need to feel comradery. Take your brand and company culture to a new level.

  • Improve Your Online Presence and Inbound Marketing

While your customers may not be googling your location, they may be viewing your website – for the first time ever – to gain information that they used to receive from you in person. In addition, mobile usership was already rising rapidly before we were all sent home to our smartphones and tablets, with more than 50 percent of consumers viewing content on their mobile phones. So by now, it’s probably at about 100%. That means your online presence needs to look good on a smartphone.

The time is now to upgrade your brochure-like, static site into a mobile-responsive, conversion-focused and lead-generating website. Even the smallest companies can have a simple, effective website with engaging copy, strong call-to-action (CTA) buttons, a lead generator to capture email addresses and an inbound marketing strategy. I’m an advocate of an easy-to-find resource section and frequently asked questions (FAQ) section as well.

Give them answers. Answers. What a wonderful word during this time of uncertainly. Users are engaging in new content and media channels they don’t normally consume. That new content could be your (new) website.

  • Don’t Let Your Brand Die on the Street

While many companies are smartly reducing budgets overall, it’s important to keep feeding the upper funnel so that your brand remains top of mind when demand bounces back. The worst thing companies can do is ignore the situation and hibernate their marketing efforts until this is over. Brands still need to deliver value to fill the pipeline for the future. Here’s how:

  1. Recognize and address new pain points your customer may have and find new ways to address them.
  2. Repurpose existing content to fit the times. Reevaluate creative so that it’s sensitive to the current climate.
  3. Test new audiences. Think about alternate uses for your service or product that might be relevant right now.
  4. Find new ways to connect with people remotely.

If your brand only had street traffic before this crisis (meaning only you were the brand), it’s time to create a real digital footprint. Digital marketing and a digital presence are here to stay.

In this new normal, companies are desperate to connect remotely to maintain and increase their customer base. Virtual is the new visual. The onus is on marketing teams to rise above the mass of digital traffic and be heard. Our job is to pivot our marketing strategies to educate and entertain in a concise, fun way.

While there is a fine line between seizing opportunity and being opportunistic, good marketing gains even more traction and interest during these times of crisis. Keep it simple, streamline strategies and create positive messaging. Staying positive, offering assistance and building community are a good way to start.

Stephanie Woodcock is president of Seal the Deal Too, a St. Louis-based marketing, creative & communications firm. She can be reached at


Much More Than a Fish Story


I have had the good fortune of experiencing some amazing things in my lifetime, and I can say without hesitation that snorkeling an ocean reef ranks at the top of the list. My first venture into the magical and almost incomprehensible world of undersea life is decades behind me now, but I was awe-struck then and the sense of wonder I felt left a lasting impression.

These days, my close encounters with marine life tend to involve bait and a boat, but I am still fascinated by the notion that fish live out their lives completely unaware of the world that exists beyond the water’s edge. On the rare occasion that a fish finds itself on the end of my line, I imagine that for the fish, the experience of being caught, reeled aboard a boat and released back to the water must be the equivalent of a human being abducted by aliens. I acknowledge the strong possibility that my fascination might not be reciprocal. Maybe the fish don’t care at all about the who, what, where and how of what happens on land, but I’m certain I am not alone in my very human curiosity about what goes on in the world below the sea.

Here in St. Louis, the idea of developing a premiere marine-life attraction has been floating around for long time. Some of the country’s first tank exhibits made their appearance at the 1904 World’s Fair, and those of us who have been around awhile probably remember a scheme to establish a major aquarium feature as part of a master plan for the St. Louis river front that surfaced in the early ‘90s.

Like other big concepts that require a great deal of vision and commitment, this one has taken some time to materialize, but St. Louis-based Lodging Hospitality Management has finally made the long-held local dream a reality. The St. Louis Aquarium at Union Station will open in December with 44 exhibits and 130,000 animals representing 257 different species.

As you can imagine, building a two-story, 120,000-square-foot aquarium inside a National Historic Landmark structure dating back to 1894 presented some unique challenges. From demolition to site preparation to completion, St. Louis building companies large and small have contributed their expertise and creative genius to overcome those challenges and bring this project to fruition. We are pleased to bring you their story in this issue of St. Louis CNR.

When the doors open next month, visitors entering the aquarium lobby will be dazzled by a 14-foot-tall clock tank holding 10,500 gallons of water and a collection of colorful discus fish native to South America. Arched ceilings will add to guests’ sensation that they’re embarking on a train journey, especially as their ticket (which includes a specific “boarding” time) is called out and they enter simulated, life-size train cars to begin their tour of the aquarium.

The River Monster exhibit, designed and constructed to look like the ruins of a South American temple, will house enormous fish native to South American rivers and lakes. Not surprisingly, the Piranhas will be housed in their own separate exhibit.

No doubt one of the most talked-about experiences will be an exhibit known as Shark Canyon, which will house 60 sharks and rays. A walkway will lead visitors down below the 250,000-gallon tank, some 18 feet deep at its deepest point, for a close-encounter moment with schools of sharks swimming all around and directly over their heads. I can’t wait to check it out and I am excited to think that with the opening of the St. Louis Aquarium, I won’t have to don flippers and a snorkel to hang out with the fish on their own turf. I wonder if the aquarium’s residents will be as impressed as we are by the genius that went into creating their new home.

Mike Chollet

P.S. As we close out our 50th year of publication, I want to take a moment to thank our readers, our advertisers and the countless individuals whose professionalism and dedication have enriched and strengthened the St. Louis construction industry over the years. On behalf of the entire St. Louis CNR team, it is an honor to serve you and we’re grateful for your continued support of our endeavors.



Changing Times


Millennials, those born between 1981 and 1996, are at the center of our cover story in this issue. They make up a segment of our population that have been known to elicit reactions from folks my age ranging from mild amusement to serious concern about the future of the American workforce. It’s an age-old story of one generation coming to grips with new methods and attitudes of the next – the young adults who are finding their way in the working world of today. Both of my children fall neatly into the Millennial category.

In 2008, at the height of the economic downturn, my son graduated from the Missouri University Science & Technology with a degree in computer networking. Like many of his peers facing a daunting job market, he decided to embark on a five-month backpacking jaunt through Europe. He had a pretty good time (including hazy memories of Octoberfest in Munich, Germany) before dwindling funds inspired him to come home a month early.

Shortly after he got back, he did something many of us older folks have probably never done – posted his resume online in view of potential employers. To our amazement, within days he was contacted about a position with an online medical records company in Kansas City. We knew landing a job at the intersection of technology and healthcare would be a major win for him. He drove up for the interview and a few days later was offered a job with a starting salary that I didn’t achieve until midway through my working career. Though he is not an engineer per se, his STEM education – the subject of another feature in this issue – provided him a huge push forward.

Though the company he works for is not a Disneyland environment like Google or Facebook, they offer excellent pay and an incredible buffet of work benefits such as an onsite medical care, onsite child-care facilities, low-cost legal services, etc. He has been with company now for almost 10 years and was recently granted permission to work remotely. In early January, he left Kansas City and relocated to an area called Germantown in Nashville, TN. Just this morning, he sent me pictures of his new “office” on the roof deck of his apartment complex which features a spectacular view overlooking Music City. His mother and I have followed his progress with a kind of a “what the heck is this?” admiration.

I imagine the challenge of wrapping our Baby Boomer heads around the new normal is similar to what earlier generations experienced when the workweek was trimmed from seven days to six and then to five, when collective bargaining came into being or when child labor laws were enacted. At the start of my own career, I clearly recall thinking that my new ideas were the future and that the “old timers” were just too set in their ways. It is the interminable march of progress and I believe it is to be embraced. What real option do we have but to roll with the changes?

The story of the inspiring young men and women in this issue highlights new attitudes of today’s incoming workforce.

Marquez Brown, a state wrestling state champion in high school, was awarded a full ride to St. Louis Community College. After his first year, feeling unfulfilled, he joined the Air Force and wrestled in the Armed Forces while training to be military police. After military service, he returned to his hometown of Alton, IL, completed tests to enter the District Council 58 of the International Union of Painters & Allied Trades (Glaziers 1168) and began an apprenticeship in April 2006. At 36, Brown is now a Glazier Field Supervisor for IWR North America.

Nathan Garrett, 31, has been a member of the St. Louis-Kansas City Carpenters Regional Council since 2014. An encounter with Carpenters Council Director of Training & Workforce Development, Dr. John Gaal, led to a tour of the Carpenters’ training center and Garrett knew then that he’d found his niche. Garrett is currently working for Kirkwood Stair & Millwork.

Matt Murphy, 32, recently completed the apprenticeship program with Bricklayers Local 1 of Missouri and is a journeyman. Thanks to his background of completed courses at Missouri College and St. Louis Community College, Murphy was able to test in as an improver on an accelerated track. Murphy is now working with a team of bricklayers for Superior Waterproofing & Restoration, caulking windows on a 22-story-tall glass building owned by Hertz Investment Group in downtown St. Louis.

Kelly Stokes, 38, is a licensed electrician and member of the IBEW Local 1. Stokes says he took a great deal of math and science at his mother’s urging. After graduating from Ritenour High School in St. Louis, he enrolled in the night school electrical engineering program at Washington University. Stokes graduated in 2014 with his Bachelor of Science in electrical engineering and has been working since for BRK Electrical Contractors.

These fine young people and others like them are helping to move our industry forward in new and exciting ways. I’m inspired and encouraged by their ambition and I believe it serves as a great reminder for all of us that fresh perspectives make excellent fuel for progress.


A Legacy for Tomorrow


I was driving a winding back road in Eureka recently when a sign at the entrance to the Myron and Sonya Glassberg Family Conservation Area caught my eye. I knew the Glassbergs back in the 1970’s during my stint at the Washington University faculty club and they were a lovely couple. Seeing that sign sparked fond memories of the Glassbergs, and I was pleased to see that they had left a legacy that reminds folks like me that their family was here, and that they cared deeply about nature and their community.

Personally, I am not a person who feels compelled (or qualified) to leave my mark on the world in such a literal way. When my time comes, I will be satisfied to have simply lived the best life I possibly could, but as a native St. Louisan I have a deep respect for the heritage ingrained in our city. We have long track record of creating exciting new structures, and a wonderful propensity for paying tribute to the builders of the past by revitalizing older structures to be enjoyed by current and future generations. One such project, City Foundry STL, is featured in this issue of St. Louis CNR.

Driving through St. Louis, you don’t have to look very far to find buildings that were long-ago shuttered and slowly being absorbed into a decaying urban landscape. The sad truth is that without a lot of vision, determination and funding, many of these structures will eventually be beyond help. Thank goodness there are people in our community who are willing, able and passionate about making the investments required to bring them back to life.

Transforming an old manufacturing site into an urban, mixed-use mecca while preserving as much of its original character as possible is the objective of City Foundry STL, a $230 million redevelopment project coming to life in Midtown St. Louis. City Foundry STL is but one facet of an $8 billion of development-related investment occurring within a five-mile stretch from the Gateway Arch to Washington University in St. Louis.

Steve Smith, CEO of Lawrence Group, is principal owner and developer of City Foundry STL.  Located on 14 acres, the site is bounded by Forest Park Avenue on the north, Highway 40 (Interstate 64) on the south, Spring Avenue on the east and Vandeventer Avenue on the west.

Smith developed City Foundry STL’s master plan in close collaboration with the neighboring Cortex Innovation District, directly west of the project site, to propel and sustain the synergy that both share in terms of innovative minds and their brightest ideas.

City Foundry STL sits on property that once belonged to one of the largest electrical manufacturers in the nation. The original foundry opened in 1929 and for the first 40 years, the site was known as Century Electric Foundry, where a vast variety of electric motors, castings and automotive parts were produced. After the final property owner, Federal-Mogul Automotive, closed its doors in 2007, the property stood vacant until Smith and team began preliminary work to develop City Foundry STL. As expected, the decade-long dormancy presented both challenges and opportunities.

An excerpt from a website chronicling the City Foundry STL project says it all:

If these walls could talk, they’d tell a story that’s uniquely St. Louis. They’d speak of more than a century of grit, hard work and determination. But most of all, of constant transformation. It’s a transformation driven by inspiration, creativity and collaboration – and the vision to create something new.

The project team has intentionally left as much of the character of the original foundry as possible with the perspective that it’s more important to preserve relics than to make things look new and precise. In addition to an oversized crane that will remain inside the building, original masonry, cleaned but not modified, will line the interior walls of a food hall that will be a central attraction. Smith said construction teams chose to leave the walls as they were rather than replacing them with a modern brick façade, in part to comply with historic preservation standards, but more to the point, because they felt it was important to retain the building’s original character.


It’s an exciting time to be in the building industry and it’s wonderful to imagine how the builders of tomorrow will harness their vision to pay tribute to today’s work.


These Things Take Time


My parents were happily married for 57 years. She was 17 and he was a 24 year-old army veteran when they got married in 1950. Until 2007 when my father passed away, they rarely spent more than a few hours apart. They lived together, worked together and, as dedicated golf fanatics, they played together every chance they got. Some people might say that sounds like an awful lot of togetherness, but reflecting on their deep commitment to each other reaffirms my belief that family connections are the glue that binds the world together.

I mention that they worked together because it was such a big part of their lives. My parents were small business owners—proud proprietors of an instant printing company on South Grand Ave. When they started their business, “instant printing” was new and transitional technology, but over time it was swept away by the advent of desktop and digital printing. My parents made a modestly comfortable living while it lasted and when they were ready to retire, they made the difficult decision to close their shop for good.

As executor of their estate, I was grateful to find that their legal and financial affairs were in good order when my mother died in 2017. Aside from some knotty gas and mineral rights which my forward-looking grandfather acquired in the 1950’s and bequeathed to his only daughter, the whole process was pretty straightforward. Textbook stuff for the most part but still, unraveling their modest estate was a slog even with a good head for math and accounting. It would have been considerably more difficult if the process had included liquidating or transitioning their business.

For many business owners, the complexities of planning for and making the transition of their life’s work to the next generation of the family can be daunting. Our cover story in this issue is about that very issue and it includes some data you may find surprising: According to the Family Business Resource Center and the Conway Center for Family Business, 88 percent of family-owned businesses think their family will still be running the business in five years and 40 percent of family execs expect to retire within that time period, but fewer than half of these owners have selected a CEO successor and eight out of 10 have no succession plan in place. One-third of those companies won’t survive into the second generation, only 12 percent will remain viable into the third generation, and fewer than 3 percent will survive the transition into the fourth generation. Despite those sobering national statistics, construction-related companies in the St. Louis area provide many examples of families who have safely navigated the rocky shoals of transfer of ownership down through the generations. It’s a great story and, if you haven’t already, we hope it inspires you to consider getting started on a succession plan of your own.

Also in This Issue:

Where the Rubber Meets the Road A tax increase in Illinois has some residents fuming while others look forward to better roads, new building structures and safer bridges. In this issue we cover the large-scale transportation needs that have been on the wish lists of IDOT and MODOT and the direct impact of those future projects on the construction industry.

Embracing Creativity to Make Large Commercial Deals Happen In this story, we delve into the critical function of banks and commercial lenders in making deals happen and creatively financing construction projects using non-traditional tools and resources.

BJC West County Hospital, Florissant Siteman Cancer Center on Track for 2019 Finish Barnes-Jewish West County Hospital, a replacement for the existing 47-year-old facility, is being built by joint venture PARIC/KAI and designed by Christner. The 6-story, 260,000-square-foot healthcare destination is part of BJC HealthCare’s overhaul of the 54-acre campus, including construction of an 125,000-square-foot medical office building.

ARCO Ice Rink Projects Score Big for the Stanley Cup-Winning St. Louis Blues When Arco’s ice rink projects are completed, the St. Louis Blues will have a new state-of-the-art practice facility in Maryland Heights and Maryville University will open a $15 million facility at the Chesterfield Sports Complex in Chesterfield Valley.


A Look Back at 2019 and Toward 2020



Last year I gazed into my laser-etched, OLED-lit, solar-powered crystal ball and offered up some of the technical innovations that would hit the prime time in 2019. Here’s my score card:

Continued push toward 5G cellular communications. Check.

5G has already had a limited rollout and the Sprint/T-Mobile merger was approved. Look for the major metro areas to get this first. Don’t run out an buy a new phone to take advantage of 5G because it will be a painfully slow rollout for the rest of us.

I think we’ll see a pause in the breakneck speed of technology change in 2019. Check.

Most of what was promised tech-wise is still on the horizon. There weren’t a lot of leaps this past year and certainly no groundbreaking innovations, just refinement and cosmetic changes to most technologies.

Data security will continue to dog all industries and all types of tech. Check, check and double-check.

Recently, two separate news stories regaled tales of creeps hacking into Ring brand surveillance equipment and not only watching but interacting with those on camera. Quit using the same usernames and passwords for multiple websites and accounts. Ring wasn’t hacked, but rather the individual accounts were. IoT, the Internet of Things, will have to address the build-first, secure-later mentality which exists before it has any realistic chance of mainstream acceptance beyond select things like video doorbells and smart speakers.

Looking into 2020, besides it being a leap year, I doubt that there will be any quantum leaps in consumer electronics or technology in general. As happened in 2019, we are in the lull before things jump forward again. An exception is the new “space race” when the likes of Space X, Blue Origin, Virgin Galactic and Orbital are all starting to make commercial spaceflight look like the sci-fi movies all told us it would be. Once these companies truly make a trip into orbit an easy journey, the next step will be manufacturing in the weightlessness of space. Things will then get interesting quickly. I wouldn’t be surprised to see breakthroughs in materials, pharmaceuticals and processes change our lives in meaningful ways.

On a final note, this is my final regular column for St. Louis CNR. Like technology, things change in publishing and this page space has become too valuable for just the musings of a geek. It is my sincere hope that you’ve enjoyed the information and insights I’ve tried to bring to you over the years in an entertaining way. You can keep up with technology news by following me at or on Twitter @softtogo

May we all SEE a bright future in 2020.

Joe Balsarotti is President of Software To Go and is a 40-year veteran of the computer industry, reaching back to the days of the Apple II. Keep up with tech by following him at or on Twitter @softtogo.


Fifty Years of Construction Delay Claims: Few Cases Are Without Them



St. Louis CNR celebrated 50 years in 2019. By coincidence, I wrote an article for The St. Louis Bar Journal in its summer 2019 edition entitled “Missouri Construction Delay Law: A 50-Year Review.”

The article was penned for lawyers, containing about 50 Missouri appellate reported cases over the past 50 years. These 50 cases made the short list as the most important from the more than 2,000 I had reviewed.

The first section focused on owners and the second on contractors and subcontractors.

Here are a few observations about delay disputes during the last 50 years:

Delays so dominate construction disputes that few cases do not include a delay claim.

Missouri case law does not favor any particular party in the construction food chain over any other party on delay issues. Both owners and contractors (including subcontractors) benefit from clearly, fairly worded contracts that cover potential delay issues. The courts will enforce such provisions as written.

Absent contract direction, the courts tend to look to common-sense solutions to decide which party or parties are at fault for the delay(s). If there are multiple parties responsible, the consequences may be shared on a pro-rata basis.

Contract provisions specifically addressing delay issues protect everyone, but owners tend to benefit the most from such provisions.

Missouri courts generally will enforce contract requirements for timely written notice of potential claims. This means that if there is no notice, the claim may collapse for procedural reasons.  The particular facts of any case, of course, could provide an exception and there have been some during the last 50 years. (That is why lawyers have a job.)

The decisions of a contractually designated professional on how to enforce the contract and interpret it are final. This should be comforting news to architects and engineers who are typically named as the contract referees.

Surprisingly, no Missouri case has specifically addressed if a “no damage for delay” clause is enforceable. In my opinion, most Missouri construction lawyers believe they generally are.

Missouri has not adopted the concept of cardinal change. Contractors apply this concept to “throw out” the contract – especially its restrictions on delay claims and recovery – when the project experiences rampant, widespread or substantial changes in scope through no fault of the contractor, thereby drastically altering the contract’s original intent and purpose.  Contractors then ask judges, juries and arbitrators to award them their “total costs” as opposed to the contract-specified amounts.

A contractor’s best legal friend to compensate for delays is establishing they are excusable.  Missouri’s Supreme Court affirmed this concept in 1972, upholding a trial court decision that the contractor’s delays were the owner’s fault. Owner nonpayment is another reason to excuse delay.

James R. Keller is counsel with Sandberg Phoenix & von Gontard P.C. where he concentrates his practice on construction law, complex business disputes, real estate and ADR. He also is an arbitrator and a mediator. Keller can be reached at (314) 446-4285 or


Lead Generation: Get More Leads and Convert Them into 2020 Sales



As we review our 2020 marketing plans, the main question I hear is: How do we get more leads and turn them into sales?

I sit down with companies and develop crawl, walk, run marketing plans.

.  What do we do first, next, this year and next year? First off – dream big. Get that “run” plan written down. If you don’t plan for it, it won’t happen.


Let’s focus on crawl and walk first. These are items that we can solidly get accomplished in the calendar year. The “crawling” category is about finishing easy-to-activate tasks. All housekeeping marketing items belong here, such as:

  • HTML-coded email signatures with a Call to Action button
    • Keep it consistent. Change up the CTA button periodically. Add extra content, a link to your LinkedIn profile, a project spotlight, published article, charity involvement, giveaway or award recognition. Be creative. Your email signature is one of the first and most frequent branding elements your clients see.
  • Upgrade proposal templates, office collateral, PowerPoint presentations, invoice templates, etc.
    • Keep consistent and make sure all your office personnel have access to the newest versions.
  • Website maintenance

This item should be first on the list, but I’m easing you into 2020. Nothing says “I don’t have a marketing person” like a poorly updated website. Updating plugins and page content, changing out footer information, getting an SSL certificate are all necessities to keep the brand current and your clients informed. Make a note in your “run” category to have all these website updates prepped for 2021 before 2021 begins.

  • Update your email database


My favorite category. It’s a sight to see my clients reach and grab things off the proverbial coffee table of marketing ideas and put them into action. This is where the fastest growth happens, and lead generation can take off. We go from teetering on two legs to stomping around, impressed by our massive marketing strides.

Here are some possibilities that fall under the “walk” category:

  • Inbound Marketing
    • Add content to your website that acts as lead generating tools. Websites need to be more than just brochure, informational sites. This includes how-to videos, lead generating PDFs, surveys and content that creates urgency. Our goal is to engage the customer with detailed information that solves problems.
  • Press Releases and Advertising
    • Maximize your print ads, electronic ads and press releases to drive traffic to landing pages on your website. You will be able to track traffic, engage your audience with lead generating tools and capture more database information critical to your outbound marketing plan.
  • Association and Event Involvement
    • Are you overly relying on repeat and referral business and not enough on inbound lead generation? In an increasingly digital world, it’s important to keep face-to-face with clients and prospects. Pick three events to attend and consider sponsorship opportunities in a major event where a good portion of your clients are present. In the A/E/C industry, it is crucial to be a fixture at industry association functions.
  • Outbound Marketing – Get Creative
    • Develop creative campaigns involving digital and event marketing that promote a service, award, anniversary, new look or anything creative that solves a problem, entertains or educates. In B2B lead generation, our jobs as marketers are to identify the audience, connect with targets, explore opportunities and then advise. Business does not just walk in the door and sign the contract. It takes a structured, lead generation plan and a joint effort by sales and marketing to get it accomplished. Your digital marketing should be an extension of your face-to-face sales effort and communication.


Grab your headband. Here we go. The run category is for goals that may not happen this calendar year but are still important. Whether you want to create an onboarding video for your new employees, implement a new CRM format, increase SEO/SEM practices on your website or start a new texting program for client engagement, all these items are placed in the “run” category. These typically take time for buy-in and require a higher spend, so they demand a longer lead time for implementation.

All these items generate more leads. Engaging with sales via a structured strategy in a crawl, walk, run marketing plan helps nurture these leads into sales. The two go hand in hand. We can’t have a great marketing plan and generate leads if we don’t also have a way to guide them into sales.

Stephanie Woodcock is president of Seal the Deal Too, a St. Louis-based marketing, creative & communications firm. She can be reached at


Struggling Firms Get a Second Chance


Submitted by: Schmersahl Treloar & Co.

For many business owners and executives, filing for Chapter 11 bankruptcy proceedings seems like admitting defeat, but it shouldn’t be that way. 

The bankruptcy code exists to provide second chances. Chapter 11, which covers business reorganizations, allows struggling companies to right themselves so that they may once again be profitable engines of the nation’s economy.

No provision in the Bankruptcy Code is more important to achieving this goal than the automatic stay provision of Section 362.

Current Bankruptcy Law

A wide-ranging law that makes major changes to the country’s bankruptcy laws was signed by President W. Bush on April 20, 2005 and went into effect on October 17, 2005.

Under the Bankruptcy Abuse Prevention and Consumer Protection Act, it is more difficult for individuals to file for Chapter 7 bankruptcy, which wipes out most unsecured debts — including credit card debt. Lawmakers say the changes, which prohibit some individuals from filing for bankruptcy altogether, are necessary because at the time this law was passed, filings had reached historic highs.

In addition to the major changes in consumer bankruptcy, the Bankruptcy Act also contains numerous changes for business bankruptcy cases, including rules for reorganizing under Chapter 11. It also created a new chapter of the Bankruptcy Code, Chapter 15, which addresses cross-border insolvency.


The automatic stay provides a time-out — a window of opportunity to fix problems. In some cases, time is all that’s needed.

Whenever a company — or an individual — files for bankruptcy, the automatic stay kicks in. Like a temporary injunction, the automatic stay prohibits any action by a creditor against the debtor or its property.

Actions prohibited to a creditor under an automatic stay include repossession, foreclosure and lawsuits. The automatic stay even affects the IRS. While the stay is in place, the IRS is prohibited from issuing tax liens or seizing property.

There is one major difference between the automatic stay in bankruptcy and a typical temporary injunction: No hearing is needed for the automatic stay to take effect. It occurs as soon as a petition to file for bankruptcy proceedings is stamped at the court.

Power to Punish

A company can then move forward without fear. The bankruptcy court has the power to punish creditors that knowingly violate a stay by filing a contempt charge against them. Harassing letters and phone calls should stop. If they don’t, notifying the court of a creditor’s transgression generally ends the problem.

While the automatic stay is in place, the debtor company is prohibited from paying most of its pre-petition debts. This provides a chance for the company to rebuild itself as a going concern.

However, recent changes in the bankruptcy law impose limits on the duration of the stay for certain repeat filers (see box). These debtors must seek a stay from the court in order to have the protection of the automatic stay.

You might think that filing for bankruptcy to get an automatic stay sounds all well and good, but filing will surely dry up the pool of available credit for things such as operating expenses. Won’t bankruptcy tie the company’s hands and kill any hope of future success? This is generally not the case. Sometimes, a struggling company has an easier time obtaining credit once bankruptcy has been filed and the automatic stay is in place.

Credit availability tends to increase because of the prohibition against paying pre-existing debts. All debts incurred after bankruptcy has been filed (post-petition debts) must be paid first, before any pre-petition debts. As long as the company shows that it can operate profitably if it doesn’t have to immediately pay its pre-petition debts, credit is likely to be available.

Fruitful Negotiations Count

Consult with your accountant about the best way to proceed. And keep in mind that corporations that successfully come out of bankruptcy almost always do so because of fruitful negotiations with creditors. The automatic stay is not a cure-all. For some businesses, no amount of time can fix things. But for a company that is fundamentally strong, with credit in hand, the automatic stay provides an important opportunity to talk to creditors and get back on track.

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